Delgamuukw at 10: An Insider’s Tale

On December 11, 1997, the Supreme Court of Canada handed down its landmark decision in Delgamuukw v The Queen. To mark this week’s ten-year anniversary, TheCourt.ca commissioned a pair of pieces from two of the lawyers involved in the case.

On Monday, Peter R. Grant, lead counsel for the Gitxsan and Wet’suwet’en chiefs, described Delgamuukw’s legal legacy. Today, Bryan Williams, lead counsel for the Province of British Columbia at the Court of Appeal (and later Chief Justice of the B.C. Supreme Court), provides an insider’s account of the events leading up to the Supreme Court ruling.

Delgamuukw v The Queen, [1997] 3 SCR 1010 [Delgamuukw] is certainly the most fascinating case I had the privilege of arguing in my entire career as a counsel.

In the years leading up to Delgamuukw, I had done a fair amount of aboriginal work as counsel to several nations of native people. I was asked by the Attorney General and Premier of British Columbia to act as lead counsel for the province in the Delgamuukw appeal. Lead counsel at the trial for the Province of British Columbia was D.M.M. Goldie, and the judge was the then-Chief Justice of the Supreme Court of British Columbia, Alan MacEachern.

The trial judgment, which is 394 pages in length, deals with a great deal of history and the concept of aboriginal title. The judgment, however, determined that the plaintiffs’ aboriginal right would have constituted a legally enforceable continuing burden upon the title of the Crown were it not for extinguishment. In his summary, the Chief Justice remarked that:

The pre-confederation colonial enactments construed in their historic setting exhibit a clear and plain intention to extinguish aboriginal interests in order to give an unburdened title to settlers and the Crown did extinguish such rights to all the lands of the colony. The plaintiffs’ claims for aboriginal rights are accordingly dismissed.

When the appeal was launched by Delgamuukw, I was approached by the then-Premier and Attorney General, who sought my opinion of the trial judgment. I indicated that, with the greatest of deference, I disagreed with the Chief Justice. Aboriginal rights like other rights, I explained, could not be impliedly extinguished but had to be expressly extinguished to be effective. I was advised by the government that they did not agree with the trial judgment either, and accordingly, they retained me to defend the Crown’s position in the appeal, but to argue that extinguishment had not taken place.

I approached three of Canada’s leading counsel to ask whether the Government of the Province of British Columbia could argue that its trial-court victory on extinguishment issue should be ignored. I determined after those conversations that if the government wished to change its mind, and if I as counsel could give an opinion that Confederation had not effectively extinguished aboriginal rights, then we could go forward with the case. That we did.

At the opening of the appeal, I advised the court sitting in a panel of five judges, that the Crown did not wish to argue that the Chief Justice had been correct. Rather, it wished to argue that extinguishment had not taken place. Having taken that position, I sought instructions from the Attorney General, who agreed that the court should appoint an amicus curii to argue the position reached by the Chief Justice at trial, so that all aspects would be before the court. The court upon that offer appointed the firm that had represented the Crown at trial as amicus curii in the appeal.

The Court of Appeal was asked to deal with issues and positions far too numerous to mention in this short summary. Only a careful reading of the Court of Appeal judgment could do justice to those issues and how they impacted upon the Crown and the Gitksan and Wet’suwet’en.

There was of course much discussion about the lands involved and what was necessary to prove that aboriginal title did exist in certain lands within the claim area of the Gitksan and Wet’suwet’en. Some lands were village sites, some were fishing sites, some were hunting and gathering areas and some of the land was barely if ever used for any purpose. Nonetheless, the entire area was claimed by the Gitksan and Wet’suwet’en chiefs. In the end, it was clear to the court that there was insufficient evidence to establish which parcels of land were covered by aboriginal title, and which parcels were therefore the subject of unextinguished rights.

There was also a contest between public lands and privately owned lands. This was a complex issue, since the Crown exercising sovereignty had supposedly granted exclusive rights to settlers and other land purchasers in British Columbia. The appeal court did deal with this issue but held that both titles could apply. Thus, while the Crown had a right under the sovereignty banner to issue title to land, that land was still burdened by aboriginal title. In my view, the intricacies of that issue have still not been analytically resolved.

Another interesting issue was the use of oral evidence. Could the court rely upon what has always been referred to as hearsay evidence, passed down from one generation to another, to establish title? That issue was dealt with by the Court of Appeal, and ultimately, in the Supreme Court of Canada, resolved in favour of the appellants.

The Court of Appeal was not unanimous on a number of issues, however. Once again, the differences could only be properly understood by a careful reading of the judgment. In any event, since the Court of Appeal had decided that aboriginal title had not been extinguished by Confederation, Delgamuukw proceeded to the Supreme Court of Canada.

I acted as counsel in the Supreme Court of Canada and represented the Crown on the first motion before the Supreme Court. However, shortly thereafter, I was appointed to the Court of Appeal of British Columbia. I therefore turned over the case to my very competent and capable associate counsel, Joe Arvay, who carried the case through the Supreme Court.